How Not to Win a Surveillance Reform Fight

So it looks as though Al Franken reading the Fourth Amendment to DOJ’s David Kris has blown up on lefty and/or privacy-friendly blogs. Look, I appreciate the sentiment, I really do. I want to see Senators reciting the Fourth Amendment to representatives of the executive branch every time there’s a hearing. I want them to tattoo it on their legislative aides’ foreheads and have it played as a background soundtrack in Dirksen like subliminal Brave New World programming. But for the serious? David Fucking Kris does not need to be schooled on the Fourth Amendment’s particularity requirements by Stuart Smalley. I spent Thursday afternoon reading the chapter David Kris wrote on how the Fourth Amendment’s particularity requirement applies to FISA taps in his ginormous reference book on national security surveillance. If the name doesn’t ring a bell, Kris is the stone cold killer who put a bullet in the head of the legal sophistry invoked to justify Bush’s warrantless wiretap program without breaking a sweat. Alternatively, you may recall him as the guy responsible for exposing the bogus claim that investigators needed broad new powers in order to be able to eavesdrop on wholly foreign conversations. Or the guy who torpedoed the dishonest technological argument for expanding FISA wireline intercept powers.

His job is now to defend the renewal of roving wiretap authority in foreign intel investigations. But you know what? There should be roving wiretap authority in foreign intel investigations. No sane person says there shouldn’t. No, really. Call the ACLU or CDT and ask. The surveillance hawks want the debate to be “should this power exist or not?” because—since it should—that means they win. The real question is whether there should be clearer limits on roving applications to ensure that if a warrant gets to “rove” across communications “facilities” (e.g. disposable cell phone numbers) you at least have to specify an individual target precisely and follow robust, enforceable minimization procedures to guarantee you’re only picking up your target’s communications. When I hear Kris saying we shouldn’t implement that reform, I’ll shed a single sad-clown tear for the smart man we’ve lost to the Sarlacc Pit of government work. What I’m actually hearing so far are offers to work with Congress to fix the insane legislation that—who now?—oh yes, Congress passed when a different bunch were running DOJ.

Memo to Democratic legislators: The people there now are relative friendlies. They’re extending olive branches, which you should probably stop setting on fire. You’re just giving Bushie dead-enders an excuse to paint this as “civil liberties hippies vs. the Brave Americans Fighting Terror.” I watched John Conyers spend a good chunk of Tuesday’s hearing on the House side being a condescending dick to Todd Hinnen, one of the fiercest critics of Bush-era detention and interrogation policies. This just leaves smarmtastic bottom-feeders like Jim Sensenbrenner and Jeff Sessions to cast themselves as solicitous Grima Wormtongues by contrast. It makes for an awesome YouTube clip on Firedoglake, right up until the part where you fucking lose.

Let’s write a new script. I call it “Civil libertarians and sober intel people trying to craft good policy together, thereby depriving psychotic executive branch maximalists of the cover they need for their fearmongering.” Not, admittedly, a particularly pithy title. It’ll never be a Regnery bestseller. But we’re talking C-SPAN here; work with me people.

10 responses so far ↓

Wait, Franken picked a guy who was basically against all the worst of the Bush era stuff to lecture on the 4th amendment? The one that doesn’t apply to foreign stuff? He didn’t even bother to figure out if the guy he was accusing of violating the constitution was actually trying to? Doesn’t he have, well, a staff of people to look things up like this?

I was an extreme lefty in my younger days. Now I see I was, in many cases, as irrational as the irrational extreme right. If we push to eliminate spying, we’re saying (1) No war ever (2) Don’t torture (3) Don’t spy either. What should we do, send them flowers?

We have to make it clear we want to be legal and practical. No spying on Americans with no connections to any terrorists (friends living in terrorist-supporting countries is not a good enough reason to violate our privacy – our foreign friends can’t all choose their citizenship, no one can choose what country we’re born in). Stop drowning intelligence agencies in too much useless info or else valid necessary info that can save lives will be buried under the deluge.

Ahh, precious Balance, let’s at least try to grasp and hold on to it as we swing by, from left to right. Pandering in public and selling out to the highest bidder in private is exactly why we’re so cynical about our govt – a dangerous place to be for a democracy, or even a representative republic.

The executive branch cannot be trusted to police itself. That is the point of the balance of powers. Kris’ intelligence and knowledge of these issues only means he must be watched with extra care by Congress. Denigrating Al Franken as Stuart Smalley has no place in this conversation; Franken’s acting talent does not diminish his constitutional analysis. As a poster at BoingBoing pointed out, the conflict between Franken and Kris came down to the meaning of the word “describe.” Does it mean to specify with great detail the individual you mean (in which case, why not provide the person’s name?), or would “a Muslim who knows Bob” also count as a description? In which case Franken is right to pounce.

Actually, I think it both has an apt place and does diminish his analysis; he’s grandstanding for the camera and being supercilious to a thoughtful, non-ideological public servant whose understanding of the relevant law Franken doesn’t have the credibility to impugn. Which is a shame, because I’m on Franken’s side in this, and I’d like to see him try a more productive strategy. Blessed with a reasonable interlocutor, he could probably get Kris on board with tweaking the statutory language to leave no question whatever that in the roving case, an individual (not group) target has to be either named or specified with sufficient precision to uniquely identify the target in the context of the type of surveillance. Suddenly the Republicans can’t accuse Dems of trying to cripple the investigators, because they’re either on the same page or disagreeing in relatively minor ways.

To call Senator Franken by the fictional name Staurt Smalley would be like calling Agatha Christie Detective Poirot when describing her exercising her occupation. It only makes sense if your intention is to reduce the Senator to a comedic character or caricature, denying him his many other accomplishments: father, husband, college grad, actor, comedian, best-selling author, radio host and U.S. Senator. I’m not a real fan of the Senator but he earned the right to ask the stupid questions. The validity of the argument you make — and there’s value in it — about his line of questioning is diminished, in my eyes at least, by the flippant characterization. It reminded me of conservatives going after Murphy Brown, another TV character.

Inhofe called Franken a clown right after Franken beat Coleman. This isn’t that much different. You don’t see it or you won’t own up to it. Either way, I’m cool with that. It’s your soapbox.

But to come back and say that “some folks doth protest too much” smells of intellectual snobbism and shows a real lack of sensitivity. The “some folk” protesting are 2 out of 5 — or 40% — of your commenters on this post!

I’m just saying, I call two Republican legislators “smarmtastic bottom-feeders” who compare unfavorably to a slimy Tolkein villain, nobody blinks. But two people apparently found it necessary to express dismay at a pretty tame jibe at Sen. Franken — an admittedly flip way of pointing out that (1) what he was doing there was a bit of hammy grandstanding, and (2) the guy he’s talking down to has vastly, vastly more relevant experience and knowledge in this area, which I think ultimately makes Franken look foolish. Is it a “serious” argument? Of course not. But I’m not sure why people are reaching for the smelling salts.